New Bedford Cotton Waste Co. v. Eugen C. Andres Co.

• Citation: 154 N.E. 263,258 Mass. 13
• Parties: NEW BEDFORD COTTON WASTE CO. v. EUGEN C. ANDRES CO.
• Decision Date: 03 December 1926
• Court: United States State Supreme Judicial Court of Massachusetts

258 Mass. 13

154 N.E. 263

NEW BEDFORD COTTON WASTE CO.

v.EUGEN C. ANDRES CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 3, 1926.

Exceptions from Superior Court, Suffolk County; F. Lawton, Judge.

Action of contract by the New Bedford Cotton Waste Company against the Eugen C. Andres Company to recover on contract for sale of cotton waste. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

W. B. Leach, Jr., of Brookline, for plaintiff.

W. H. Garland and A. Garceau, both of Boston, for defendant.

WAIT, J.

The first count of the declaration alleges breach of a written contract for purchase and sale of merchandise through failure of the buyer to give shipping instructions called for by the contract. It sets out facts showing the extent of the damage. The second count is upon an account annexed, the items of which are: (1) Indebtedness on December 1, 1921, for the contract price of goods then deliverable under the contract; (2) interest on that amount to March 30, 1922; (3) money paid for storage charges until that date; and (4) credit for the amount received by the plaintiff from a sale of the goods made on March 30, 1922. The counts are different statements of the same claim.

[1] The bill of exceptions discloses that the only request or motion presented by the defendant at the trial before a judge sitting without a jury was that judgment be ordered for the defendant. No attention was called to the fact that because the contract, by its terms, allowed the buyer a credit of thirty days which had not then expired, nothing was due on December 1, 1921. No prayers setting out the contentions of law made by the defendant were addressed to the judge during the hearing. In this state of affairs the only exception open to the defendant is, whether the judge was right in refusing, as he did, to order judgment for the defendant. Lyon v. Prouty, 154 Mass. 488, 28 N. E. 908. It cannot gain added grounds of exception after receiving notice of the decision, by claiming then, for the first time, exceptions to what it calls rulings ‘in substance,’ implied from the ‘findings of fact and rulings' which the judge filed with his order for judgment for the plaintiff. Richards v. Appley, 187 Mass. 521, 73 N. E. 555;Thwing v. Clifford, 136 Mass. 482;McCoy v. Jordan, 184 Mass. 575, 582, 69 N. E. 358;Jones v. Newton Street Railway, 186 Mass. 113, 71 N. E. 114;Quimby v. Joy, 196 Mass. 584, 82 N. E. 1084.

[2] In a trial before a court without a jury, a motion that a finding be entered for the defendant may involve the determination by the judge of questions both of fact and of law. A valid exception to a denial of the motion can exist only when, as matter of law, the plaintiff cannot prevail. Such a motion raises only the question whether the plaintiff can recover any judgment. It does not raise the question of the amount recoverable. Keohane, Petitioner, 179 Mass. 69, 60 N. E. 406.

[3] The effect of rule 45 of the superior court (1923), allowing exceptions to an order, ruling or decision made in the absence of counsel, is to fix a time within which counsel, who are not present when the order in a case reserved for consideration by a judge, is filed, can claim the exceptions which they could and should have claimed at the hearing had that been possible.

Parties do not acquire rights to additional exceptions under the rule. They are merely secured against the loss which otherwise would result from the lack of opportunity to claim exceptions during the hearing. See McDonnell, petitioner, 197 Mass. 252, 83 N. E. 675;Boutelle v. Dean, ...